H. Jefferson Powell

The Original Understanding of Original Intent

When interpreting the Constitution, judges and commentators often invoke the “original intent of the framers” in support of their positions. Many claim that such an interpretive strategy is not only currently desirable, but indeed was the expectation of the Constitution’s drafters and early interpreters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected future interpreters to seek the meaning of the document in the framers’ intent. He first examines the various cultural traditions that influenced legal interpretation at the time of the Constitution’s birth. Turning to the history of the Constitution’s framing, ratification, and early interpretation, Professor Powell argues that although early constitutional discourse did contain references to “original intention” and the “intent of the framers,” the meaning of such terms was markedly different from their current usage. He concludes that modern resort to the “intent of the framers” can gain no support from the assertion that such was the framers’ expectation, for the framers themselves did not believe such an interpretive strategy to be appropriate.

A community built on words : the constitution in history and politics

H. Jefferson Powell offers a powerful new approach to one of the central issues in American constitutional thinking today: the many ways in which constitutional arguments and outcomes are shaped both by historical circumstances and by political goals - including those of judges. Brilliantly combining history and theory, Powell analyzes a series of constitutional controversies from 1790 to 1944 to demonstrate that constitutional law from its very beginning has involved politically charged and ideologically divisive arguments. Powell then takes his conclusions one step further, claiming that it is precisely this historical tradition of argument that has given American constitutional law a remarkable coherence and integrity over time. No matter what the particular political disputes of the day might be, constitutional argument has provided a shared language through which our political community has been able to fight out its battles without ultimately fracturing.

Grand Visions in an Age of Conflict

In the spring of 2005, Professor Laurence H. Tribe commented that federal constitutional law is in a state of intellectual disarray. No doubt fortuitously, two of our most formidable constitutional scholars, Akhil R. Amar and Jed Rubenfeld, have published systematic studies that implicitly challenge Tribe’s conclusion that “ours [is] a peculiarly bad time to be going out on a limb to propound a Grand Unified Theory - or anything close.” With admirable boldness, Professors Amar and Rubenfeld have done precisely that - gone out on a limb, or rather two very different limbs, to propound their own accounts of what American constitutionalism is, or should be. This article reviews both Amar’s America’s Constitution and Rubenfeld’s Revolution by Judiciary, which are alike in that each is its author’s synthesis of a remarkable effort, sustained over a number of years, to develop a comprehensive vision of the Constitution. Where the two books most sharply diverge is that Revolution by Judiciary has as its ultimate focus the actual practice of constitutional law, while America’s Constitution is concerned with unveiling a set of textual meanings that are not finally rooted in history or law. Perhaps most importantly, however, both these books suggest that the right response to the existing discord in constitutional law and scholarship is not to retreat to small-scale projects, but to seek with renewed zeal a grand vision of constitutional meaning. Professor Amar and Professor Rubenfeld have shown real moral courage in going out on Professor Tribe’s limb to offer us broad-ranging attempts to speak about the whole of their respective, somewhat different, subjects.

The Province and Duty of the Political Departments

The discussion apparently took up most of the legislative day. The issue before the House of Representatives involved a proposal to prohibit the involvement of certain federal revenue agents in electoral politics other than by casting their own votes. Supporters warned of the threat to free elections posed by official electioneering based on knowledge gained through public service or influence wielded through public office. They denounced the unfair political advantage an unscrupulous President could gain by having subordinates pursue the Presidents political goals, and they pointed out the vulnerability of government employees to political pressure from their superiors. Indeed, some members called for the extension of the electioneering ban to all revenue agents, or even to all federal employees. Critics of the proposed ban argued that the proposal would be an unconstitutional denial of the right of free expression, that its exclusion of the affected officials from the sphere of electoral politics was tantamount to a denial of their right to vote itself The practical result of its adoption, they warned, would be the very corruption of the public service that the proponents of the ban feared: only those so lacking in public spirit as to be suitable tools for an unscrupulous administration would undertake public service at the expense of their public rights to participate fully in the political process. In response, the proponents of the electioneering ban rejected the charges of unconstitutionality. Some objected to the notion that the ban would even touch on individual rights: the proposal would leave those affected with the same right to vote as any other citizen, and the restriction on political activity would be the result of the individuals free decision to accept government employment. Others conceded that the ban would interfere with free

Laying It on the Line: A Dialogue on Line Item Vetoes and Separation of Powers

In this Dialogue, constitutional pundits Confident and Doubtful debate the Line Item Veto Act of 1996. They wrangle about the application of the Article I, § 7 process to the Act, the relevance of the legislative bargaining process to its constitutionality, and the merits of formalism and functionalism. As Confident becomes No-Longer-SoConfident, Doubtful proposes a way to reconcile the seemingly irreconcilable “formalist” and “functionalist” Supreme Court decisions. Marshalling the constitutional text for support, Doubtful argues that the Court should take a checks and balances approach to congressional delegations of power to the executive, while maintaining a rigorous separation of powers review of Article I powers.

'Cardozo’s Foot': The Chancellor’s Conscience and Constructive Trusts

More than 350 years ago, the English legal scholar John Selden complained that the chancery’s jurisdiction in equity depends on a variable standard that might as well be based on the length of the “Chancellor’s foot.” The “Chancellor’s foot” has since become proverbial shorthand for the argument that equity is an unjustified and unfortunate interference in the regular course of the rule of law. In today’s legal environment, both in form and in practice law and equity have become largely indistinguishable and yet find some special cause for concern, or at least interest, in the workings of conscience in what we still label equitable doctrines and decisions. Even with the considerable infusion of equitable considerations into the substance of much common law doctrine, the formulas of equity are more likely to incorporate overt calls for the exercise of discretion and the application of the decisionmaker’s moral intuitions.This article proposes to examine this issue by focusing on a particular doctrine of equity, the constructive trust, and on a seminal figure in the development of the modern U.S. understanding of constructive trusts, Benjamin Cardozo. Cardozo played a demonstrably central role in the evolution of the constructive trust in the United States from a substantive legal relationship to an independent judicial reedy, an evolution that distanced modern U.S. doctrine from its historical roots as well as from what seems still to be the predominant view in England. That evolution also greatly emphasized the importance of conscience in decisions involving constructive trusts, a development for which Cardozo — or at least Cardozo’s opinions — is largely responsible.